I received a call yesterday from an RIA firm that had been providing magazine subscriptions and other gifts to clients that referred new clients to the firm. The managing member of the RIA firm said that he had attended a seminar at one of the industry’s bigger conventions and the speaker had suggested such an incentive program and had assured them that it was OK as long as no actual money involved.
OK, short answer, don’t go there. This is an issue that has been debated, as the Advisor’s Act talk in terms of prohibitions of gifts of money. In an early decision, the SEC implied that the prohibition extended to both money and non-money gifts where same was clearly in exchange for the referral.
Occasional gifts of sports or theater tickets should be fine as long as there is no demonstrable pattern of such gifts that could be construed as compensation for referrals. RIAs often send a gift card or a similar gift to clients on their birthday. As long as the gift is not excessive ( in excess of $100), such gestures are arguably valid business expenses to thank clients.
The real issue with regard to any form of compensation to clients in exchange for referrals has to do with actual or potential conflicts of interest and disclosure of same. This is a slippery slope and could possibly depend on the actual facts of the case. In cases where this practice is involved, I have always argued that the failure to disclose is a violation of the Advisor’s Act if the practice is not disclosed at all in both the RIA’s Form ADV and specifically in writing to the potential client. RIAs should remember that full disclosure is one of the primary duties under the Act.
One of my ongoing concerns is that many consultants do not take the time to research legal decisions and enforcement actions to fully inform themselves of applicable legal and regulatory standards. Knowledge of the Advisor’s Act and the relevant regulations is absolutely necessary. However, failing to research all sources of relevant compliance information can result in serious consequences for both the RIA and the consultant.